Fall River man to be arraigned after allegedly posting photo of Corporation Counsel Sousa with lewd caption

Monday

Aug 11, 2014 at 8:38 PMAug 11, 2014 at 9:19 PM

John F Creedon III, estranged cousin of Mayor Flanagan, charged with misdemeanor count of annoying or accosting persons of the opposite sex after photo was posted to Facebook.

Brian Fraga Herald News Staff Reporter @BfragaHN

FALL RIVER — A Fall River man will be arraigned later this month on a criminal charge after allegedly posting a picture of the city’s lead attorney on Facebook with a sexually explicit caption that alluded to a purported physical relationship with the mayor.

The defendant, John F. Creeden III, 45, of 23 Morris St., said his posting and comments about Elizabeth Sousa, the Fall River corporation counsel, last month on the Facebook page “Threw Up in Fall River” was intended to be political satire and parody, which he argues is protected free speech under the First Amendment.

“This charge against me is politically based. This is all personal,” said Creeden, an estranged cousin of Mayor Will Flanagan.

Meanwhile, Sousa says she pursued criminal charges against Creeden because she felt threatened and demeaned by his Facebook posts.

“This has caused me severe emotional distress,” Sousa said. “I felt demeaned, degraded, dehumanized as a woman and as a professional. I felt that I had no other choice other than to report such repugnant behavior to the police because I firmly believed that what he was doing was criminal in nature.”

On Aug. 7, a Fall River District Court clerk magistrate found probable cause to charge Creeden with one count of annoying or accosting persons of the opposite sex, a misdemeanor offense. The magistrate did not find probable cause to sustain a criminal harassment charge that Sousa was also pursuing against Creeden, according to court documents.

Creeden will be arraigned on the annoying or accosting charge on Aug. 26.

Creeden’s lawyer, Patrick McDonald, said he will file a motion to dismiss the charge. McDonald said his client was expressing political opinions about a public figure — though Sousa disputes that label — on a private citizen group’s Facebook page.

“It’s not disorderly conduct because it’s not public speech. Facebook is a membership organization. If you don’t want to see what’s on Facebook, don’t join,” McDonald said.

The Creeden case in some respects shows how criminal statutes, written decades before the advent of the Internet and social media sites such as Facebook and Twitter, are still catching up to developing modern technologies. McDonald and legal experts could not recall another case in Massachusetts where someone has been charged with annoying or accosting a person of the opposite sex for posting demeaning online comments about them.

“This is causing the state Legislature to revisit a lot of these statutes, amend them and add additional language to them,” said Steven Sabra, a Somerset trial lawyer and legal analyst for WSAR’s Law Talk radio show. Sabra noted that the Legislature had to rewrite the state’s law against secret video recordings after the Massachusetts Supreme Judicial Court ruled in March that the statute did not apply to someone who secretly recorded video under a woman’s skirt in public.

The case that most closely resembles the Creeden matter, analysts said, appears to be a 2001 Massachusetts Supreme Judicial Court decision — Commonwealth vs. Chou — that upheld the same criminal charge against an 18-year-old man who broke into a public high school at night and posted fliers throughout the school containing sexually explicit comments about an ex-girlfriend.

However, Robert Harnais, a Quincy defense attorney who is the incoming president-elect of the Massachusetts Bar Association, said there is a difference between a public forum, such as a high school building, and Facebook, where users have to create accounts and search out specific content.

“I don’t see how that would be threatening or menacing behavior as was described in the Chou case. I don’t think (the Creeden case) rises to the level of a criminal case,” Harnais said.

According to court documents, Creeden posted Sousa’s picture, edited with the sexually explicit caption, around 10 a.m. on July 15. Within minutes, other people on the Facebook page began commenting on the picture. Creeden also wrote additional comments of a sexual nature targeting Sousa and Flanagan.

Creeden said he reposted Sousa’s picture from another Facebook page, and said that he was repeating what other commentators were already saying about Sousa, whom Creeden said he did not know was the city’s corporation counsel. Creeden also said his comments were not intended to be a personal attack.

“I didn’t know who she was. I told her at the magistrate hearing, ‘I don’t even known you,’” Creeden said.

An hour after Creeden’s Facebook post, Sousa said people began notifying her about its content.

“When I first saw the photograph and the posts, they were just absolutely disgusting. No woman should have to be subject to being demeaned and degraded as Mr. Creeden did to me,” said Sousa, who reported the incident to the Fall River Police Department. According to a police report, Sousa said an “employee of 1 Government Center” — who is not named in the report — called Creeden to complain about the post, which was deleted a few minutes later.

Creeden said Flanagan was the Government Center employee who called him.

“Of course it was the mayor. Who else would have my number?” Creeden said.

Flanagan described Creeden as “an estranged relative” with whom he has had no contact with for a decade until recently. Flanagan declined to comment on specific allegations in the case, which he noted is a “pending criminal matter.”

“However, Mr. Creeden has been charged with accosting persons of the opposite sex,” Flanagan said. “No man has the right to refer to any woman in an obscene or vulgar way.”

To be charged with annoying or accosting a person of the opposite sex, prosecutors have to prove a defendant knowingly engaged in “offensive and disorderly language” that targeted a victim of the opposite gender who was aware of the defendant’s actions. The defendant’s conduct also has to be offensive to a “reasonable person,” said Sabra, who believes the allegations in Creeden’s case meet those elements.

“In more detail, the question is, ‘What is disorderly language?’” Sabra said. “The case law talks about the language having to be threatening in some way. There’s a reference to sexually explicit language that may be inherently threatening when it is directed at a particular person in a setting where such a communication might be inappropriate and likely to cause severe distress.”

On July 16, Fall River police Lt. Ronald Furtado, a member of the police department’s Professional Standards Unit, was notified about Creeden’s Facebook posts after Sousa provided the police department with printed copies of the online photograph and comments. Furtado wrote in his report that he contacted Creeden and told him that the post’s “language was deemed to be offensive, sexual in nature and repugnant to contemporary standards of decency and caused displeasure, anger and resentment.” Furtado also wrote that he verbally issued a no-trespass order prohibiting Creeden from entering Government Center. The no-trespass order was requested by officials at Government Center, according to court documents.

During last week’s closed-door magistrate hearing, McDonald said he argued that his client was expressing political satire and opinion about a public figure on a private forum.

“The standard of the First Amendment is a lot higher to public figures,” McDonald said.

But Sousa, who was appointed the city’s corporation counsel in 2012, argued that she is not a public figure. Flanagan described her as a “private citizen who works for the city of Fall River.” McDonald challenged that assertion, noting that she represented the administration in public meetings regarding the pay-as-you-throw program.

“Even if Attorney McDonald was correct in his assertion that I’m a public figure, being a public figure is not a defense in a criminal case. That would be a charge in a civil litigation matter for defamation, libel or slander,” Sousa said.

Creeden and his attorney maintain the law is on their side.

“Was it in bad taste? Yes, it was bad taste,” Creeden said. “Was it political satire and parody? Yes, it was."

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